HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL PETITION No.10144 OF 2023
O R D E R:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioner/accused to quash the proceedings against him in Crime No.858 of 2023 on the file of Station House Officer, Chaitanyapuri Police Station, registered for the offences punishable under Sections 376(2)(n), 417 and 420 of the Indian Penal Code (for short 'IPC').
02. Heard Sri T.Pradhyumna Kumar Reddy, learned Senior Counsel for the petitioner and Sri S.Ganesh, learned Assistant Public Prosecutor for the State-respondent No.1 and perused the record.
03. Brief facts of the case are that:
Second respondent got acquainted with the petitioner in the year 2019 and he proposed his love for her and she also accepted his proposal. Further, they entered into a relationship and went to Cinemas, Restaurants, Malls etc. After two years, the mother of the second respondent came 2 to know about her relationship with the petitioner through her mobile phone and the mother of the second respondent spoke to the petitioner and he told her that he cannot live without her daughter, so that she also accepted him.
04. Further, whenever the parents of the second respondent were not present at her house, the petitioner used to come to her house and they met physically and had sexual intercourse for many times. The second respondent's mother asked him to talk with his parents about their love, but he has refused by saying 'no' as he wanted to wait for his elder brother to get married first. The petitioner said that his brother also knows about his relationship with the second respondent and he will accept his marriage proposal.
05. Later again the mother of the second respondent asked him about the marriage but he refused by saying that their castes are different and thus his parents will not accept her marriage proposal. Later the mother of the second respondent called the petitioner's mother and asked about the marriage but she also said no 3 by stating that all their relatives will not accept their relationship. The second respondent stated that the petitioner cheated her by giving false promise of marriage and entered into a physical relationship with her and lodged the present complaint.
06. Learned Senior Counsel appearing for the petitioner submitted that both the petitioner-accused and second respondent are adults and entered into physical relationship and that the second respondent voluntarily had physical relationship with the petitioner and therefore, the ingredients of offence punishable under Section 376(2)(n) of the Indian Penal Code does not at all attract to the present case.
07. It is further submitted that the petitioner spoke to the mother of the second respondent which clearly shows that he had intention of marrying second respondent and that both the mother of the petitioner and second respondent spoke over phone call to each other and it was explained by the mother of the petitioner that because of the objection of relatives, the marriage will not 4 be possible. In fact, the petitioner had intention to marry second respondent.
08. It is further submitted by the learned Senior Counsel that the immediately after registration of crime, both the second respondent and the petitioner entered into a Memorandum of Understanding (MOU) dated 03.10.2023 which was agreed upon by the parties that they will get married with the blessings of the elders and MOU was signed by the petitioner, his mother, second respondent and her parents. The terms of the MOU dated 03.10.2023 are not only binding upon the petitioner and second respondent but also the parents of both the parties and as per the same, after education of both the parties are completed, the petitioner and second respondent will get married. Even as per the MOU dated 03.10.2023, it is amply clear that both the petitioner and second respondent were in a relationship being adults and they were insistent on getting married. However, only due to the families of the parties reprimanding, the petitioner and respondent No.2 could not proceed with the marriage and that the 5 offence under Section 376(2)(n) of the Indian Penal Code does not at all attract to the present case.
09. Learned Senior Counsel relied upon a Judgment of Honourable Supreme Court in Kapil Gupta v. State of NCT of Delhi and another 1 wherein it was held that:
6. It further appears that subsequently, in the case arising out of Section 376 of the IPC, that is, FIR No.569 of 2020, the matter was amicably settled and therefore, the petition for quashing the proceedings under Section 482 of the Cr.P.C. came to be filed. By the impugned order, the High Court has dismissed the said petition.
12......It will be relevant to refer to paragraph 29.5 to 29.7 of the judgment of this Court in the case of Narender Singh versus State of Punjab, which read thus:
"29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.6 Offences under Section 307 IPC would fall in the category of heinous and serious 1 (2014) 6 SCC 466 offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High 1 2022 SCC OnLine SC 1030 6 Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
29.7 While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge−sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the 7 prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."
13. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may improve their mutual relationship.
15. The facts and circumstances as stated hereinabove are peculiar in the present case. Respondent No.2 is a young lady of 23 years. She feels that going through trial in one case, where she is a complainant and in the other case, wherein she is the accused would rob the prime of her youth. She feels that if she is made to face the trial rather than getting any relief, she would be faced with agony of undergoing the trial.
16. In both the cases, though the charge sheets have been filed, the charges are yet to be framed and as 8 such, the trial has not yet commenced. It is further to be noted that since the respondent No.2 herself is not supporting the prosecution case, even if the criminal trial is permitted to go ahead, it will end in nothing else than an acquittal. If the request of the parties is denied, it will be amounting to only adding one more criminal case to the already overburdened criminal courts.
17. In that view of the matter, we find that though in a heinous or serious crime like rape, the Court should not normally exercise the powers of quashing the proceedings, in the peculiar facts and circumstances of the present case and in order to give succour to Respondent No. 2 so that she is saved from further agony of facing two criminal trials, one as a victim and one as an accused, we find that this is a fit case wherein the extraordinary powers of this Court be exercised to quash the criminal proceedings.
18. In that view of the matter, the appeal is allowed and proceedings in the criminal cases arising out of following FIRs are quashed and set aside: 1. FIR No.569/2020 registered at Police Station, Mehrauli, New Delhi (Rape) 2. FIR No.824/2020, registered at Police Station, Mehrauli, New Delhi (Extortion).
10. Learned Senior Counsel for the petitioner further relied upon a decision of Bombay High Court in Sandip Sundarrao Patil and others v. The State of Maharashtra and another 2 wherein it was held that:
In Kapil Gupta v/s. State of NCT of Delhi and Anr. in Criminal Appeal No.1217 of 2022, the Apex Court has reiterated that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an 2 Criminal Writ Petition No.3058 of 2023 decided on 20.09.2023.9
offence or as to whether there is sufficient evidence which if proved, would lead to proving the charge for the offence charged with. The Court has also to take into consideration whether the settlement between the parties is going to result into harmony between them which may improve their mutual relationship.
8. It is thus well settled that the powers under Section 482 of Cr.PC. or Article 226 of the Constitution of India cannot be exercised to quash the proceedings involving serious or heinous offences, or offences against society, merely on the basis of the settlement between the parties. Yet the Court cannot and should not hesitate to exercise such powers when uncontroverted allegations in the FIR and the other material collected in the course of the investigation does not disclose cognizable offence, notwithstanding the sections mentioned in the FIR or in the charge. It is therefore necessary to consider the factual matrix of the case and ascertain whether the allegations in the FIR and the other records, taken as a whole, disclose the basic ingredients of the offence.
11. Learned Assistant Public Prosecutor contended that it is not a fit case for quashing at this stage and the matter is at investigating stage and there is primafacie material available before Investigating Officer and prayed to dismiss the petition. He further submitted that if the Court inclines to quash the crime in view of Memorandum of Understanding (MOU) dated 03.10.2023, he requested for granting liberty to the Police to take appropriate action if 10 there is any violation to the terms of Memorandum of Understanding (MOU) dated 03.10.2023.
12. On perusal of the record, it is evident that the case is still at the stage of crime. Moreover, the petitioner as well as second respondent are adults aged more than 18 years and they are students pursuing their education.
13. Taking into consideration of the fact that there was an amicable settlement vide Memorandum of Understanding (MOU) dated 03.10.2023, subsequent to registration of crime, and as ratio formulated by the Hon'ble Apex Court squarely applicable to the present case on hand, further the parents of the petitioner as well as the second respondent appeared before this Court and filed their affidavits that they are willing to perform the marriage of the petitioner and second respondent after completion of their education, this Court is of the considered view that the proceedings against the petitioner can be quashed.
14. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioner-accused No.1 in 11 Crime No.858 of 2023 on the file of Station House Officer, Chaitanyapuri Police Station, are hereby quashed. It is made clear that in case if any of the parties or their parents violates the terms of Memorandum of Understanding (MOU) dated 03.10.2023, the Police concerned are at liberty to take necessary action, in accordance with law. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ G. ANUPAMA CHAKRAVARTHY, J Date: 19-OCT-2023 KHRM 12 13 851 HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY CRIMINAL PETITION No.10144 OF 2023 Date: 19-OCT-2023 KHRM